J. W. Bateson Co., Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1961

134 N.L.R.B. 1654 (N.L.R.B. 1961)

1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. W. Bateson Company, Inc. and Frank Sutton
Local No. 116, United Brotherhood of Carpenters and Joiners
of America and Frank Sutton . Cases Nos. 7-CA-2864 and
7-CB-718. December 28, 1961
DECISION AND ORDER
On July 14, 1961, Trial Examiner Morton D . Friedman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Interme-
diate Report attached hereto. He also recommended that certain
other allegations of the complaint be dismissed. Thereafter, the Gen-
eral Counsel and Respondent Local 116 filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was -committed.' The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
affirms the findings,2 conclusions, and recommendations of the Trial
Examiner, with the following exceptions and modifications.
The Trial Examiner found, and we agree, that Respondents Bateson
and Local 116 violated, respectively, Section 8(a) (3) and (1) and
I Respondent Local 116 excepted to the Trial Examiner 's failure to require the General
Counsel to produce a document for Respondent 's use in cross -examination of Frank Sutton.
As the document , consisting of notes made by Sutton 's attorney , was not signed , approved,
or adopted by Sutton , the Trial Examiner 's ruling was proper and is , thus, affirmed. Sec-
tion 102 .118 of the Board ' s Rules and Regulations , Seises 8
Respondent Local 116 further excepted to the Trial Examiner ' s denial of its motion to
sever the consolidated cases , contending that its case was prejudiced by the testimony of a
witness called by the General Counsel in Case No 7-CA-2864, under Rule 43(b) of the
Federal Rules of Civil Procedure , as the witness did not qualify under that rule with
respect to the Respondent Union in Case No. 7-CB-718 However, as no findings adverse
to the Union ' s case rest upon the testimony of the witness in question , Respondent Local
116 was not prejudiced by the testimony and, thus, the ruling denying the motion to sever
is, apart from other considerations , affirmed
2 Respondent Local 116 excepted to the Trial Examiner 's finding that Bateson was en-
gaged in commerce within the meaning of the Act. The complaint alleged and Bateson's
answer admitted that during a representative 12-month period , Bateson purchased and
received goods valued in excess of $50,000 from across State lines. At the hearing, while
counsel, for Local 116 was present , the General Counsel sought to make clear the Board's
jurisdiction , as a result of which the information contained in the complaint was clarified.
It is Local 116's position that as it never stipulated or otherwise agreed to the jurisdic-
tional information , such information is not binding as to it However , at no stage of this
proceeding has Local 116 contended, or sought to introduce evidence showing, that the
jurisdictional facts relied upon by the Trial Examiner are erroneous . Under these circum-
stances, we find no merit in Respondent Local 116's exception.
134 NLRB No. 155.
J. W. BATESON COMPANY, INC. 1655
8(b) (2) and (1) (A) by executing and maintaining a contract con-
taining an unlawful union-security clause. Section 8 (f) (2) provides
inter alia that it shall not be unlawful in the building and construction
industry, which is involved here, to execute an agreement requiring as
a condition of employment membership in a union "after the 7th day"
following the beginning of employment. The contract clause in ques-
tion r6quires such membership "no later than" the seventh day. The
Trial Examiner found the clause unlawful because it did not "clearly"
provide on its face for a full 7-day grace period before employees
were required to join the Union. We cannot agree that the clause is
ambiguous. Rather, as we read the clause, it expressly and without
equivocation does not provide a full 7-day grace period and thus,
contravenes the provisions of Section 8(f) (2).3 , On this ground,
therefore, we affirm the above conclusions of the Trial Examiner.
The Trial Examiner also found that Local 116 attempted to cause
the discharge of employee Sutton in violation of Section 8(b) (2) and
(1) (A). He further concluded, however, that Bateson did not dis-
charge Sutton and, thereby violate Section 8 (a) (3) and (1) as al-
leged in the complaint, but rather held that Sutton quit. The record
shows that Sutton was hired by Bateson's field superintendent, Paul
Nightingale, on April 8, 1960, and was instructed to report for work
on Monday, April 11. Upon reporting on that day, Sutton was sent
by Nightingale to work under the carpenter foreman, Clouse, who
told him to report to Leo Van Horn, steward of Local 116. Sutton
found Van Horn with Nightingale and, upon his arrival, heard Van
Horn say that "There's nobody going to work unless they have a Bay
City card, belong to the Bay City Local." 4 Nightingale replied that
he wanted Sutton to go to work. Van Horn then threatened to strike
the job if Sutton worked. At that point Sutton tried to show Van
Horn his book from a sister local but Van Horn stated he didn't "care
anything about that." Sutton spoke to an unidentified job applicant
who was present and then left the construction site. At no time after
Van Horn's threat to strike the job did Nightingale speak. Mani-
festly, Van Horn unlawfully sought, as the Trial Examiner found,
to cause Sutton's discharge because he was not a member of Local 116.
However, we do not agree with the Trial Examiner that, in these
circumstances, Sutton's leaving the construction site was a voluntary
quit. In reaching that result the Trial Examiner found that Sutton
walked off the job without Nightingale's having an opportunity to
speak or state the Company's wishes on the matter. However, it is
evident from the foregoing that Sutton's exit was not so precipitous
as to preclude Nightingale's speaking had he so chosen. Thus, Night-
3 The union-security proviso in Section 8(a) (3), on the other hand, imposes the require-
ment of union membership as a condition of employment "on or after the thirtieth day."
[Emphasis supplied ]
4 The refer ence is to Local 116.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingale stood mute while Sutton' sought to show Van Horn his union
book and while he spoke to the unidentified job applicant. His silence
under these circumstances , when according to ordinary experience
an employer would be expected to speak if he did not acquiesce in the
Union's adamant position, established a situation in which Sutton
could, and did, reasonably conclude that the Company assented to the
Union's insistence that he not work. Thus Sutton's leaving the job
cannot be found to be a voluntary act on his part but rather one moti-
vated by the Company's conduct in creating the impression that it
had assented to the unlawful position taken by the Union. Accord-
ingly, we find that Respondent Company by failing to dispel this
impression constructively discharged Sutton in violation of Section
8 (a) (3) and (1) of the Act. We further find that Local 116 violated
Section 8(b) (2) and (1) (A) by attempting to cause and by causing
this discharge.
THE REMEDY
As we have found, unlike the Trial Examiner, that Respondent
Bateson unlawfully discharged employee Frank Sutton, we shall
order that it offer Sutton immediate and full reinstatement to his
former or substantially equivalent position at its Capehart housing
operation, Wurtsmith Air Force Base, Oscoda, Michigan, if it is still
in existence , without prejudice to his seniority or other rights and
privileges. Also as we have found that Local 116 caused Bateson to
engage in the foregoing unlawful conduct, we shall order that Local
116 notify Bateson, in writing, and furnish a copy to Sutton that it
withdraws its objections to Sutton's employment and requests Bateson
to offer him reinstatement at the above-named operation , if it is still
in existence. We shall also order Bateson and Local 116 jointly and
severally to make Sutton whole for any loss of pay suffered by reason
of the discrimination against him, by payment to him of a sum of
money equal to the amount he would normally have earned as wages
from the date of the discrimination until his employment would have
been terminated for lawful reasons or until compliance by each Re-
spondent with the reinstatement provisions less his net earnings dur-
ing this period. The loss of earnings will be computed in accordance
with the formula set forth in F. W. Woolworth Company, 90 NLRB
289. As the Trial Examiner did not find that Sutton had been dis-
criminatorily discharged, the period from the date of the Intermediate
Report to the date of the Order herein shall , in accord with our usual
practice, be excluded in computing the amount of backpay due Sutton.
We shall also order that the Company make available to the Board,
upon request , payroll and other records to facilitate the checking of
compliance with the Order.
J. W. BATESON COMPANY, INC. 1657
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Company, J. W. Bateson Company, Inc., its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a), Maintaining in' effect the union-security provision of the
collective-bargaining agreement dated May 4, 1960, which requires
employees to become members of the Union no later than the seventh
day following the beginning of their employment, or executing, en-
forcing, or maintaining in effect any extension, renewal, modification,
or supplement of the agreement or any superseding agreement with
the Union or any other labor organization which contains a union-
security provision not in conformity-with the requirements of Section
8(a) (3) and 8(f) (2) of the Act.
(b) Encouraging membership in Local No. 116, United Brother-
hood of Carpenters and Joiners of America, by discriminatorily dis-
charging any of its employees.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choice, and to engage in other
concerted activities for the'purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action. which the Board finds will
effectuate the purposes of the Act :
(a) Offer to Frank Sutton immediate and full reinstatement to
his former or substantially equivalent position at Respondent's Cape=
hart housing project, Wurtsmith Air Force Base, Oscoda, Michigan,
if it is still in existence, without prejudice to his seniority or other
rights and privileges.
(b) Jointly and severally with Local 116 make whole Frank Sutton
for any loss of pay he may have suffered by reason of the discrimina-
tion against him as set forth in the section of this Decision and Order
-entitled "The Remedy." .
(c) Preserve and, upon request, make available to the Board or' its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all other records necessary to determine the amount of backpay due
under the terms of this Order.
(d) Post at its places of business in the Oscoda, Michigan, area,
copies of the notice attached hereto marked "Appendix A." 5 Copies
of said notice, to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by, the Respondent
Company's representative, be posted immediately upon receipt there-
of, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Company to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Post at the same places and under the same conditions as set
.forth in (d) above, as soon as they are forwarded by the Regional
Director, copies of the notice of Respondent Union attached hereto
marked "Appendix B."
(f) Mail to the Regional Director for the Seventh Region, copies of
the notice attached hereto marked "Appendix A" for posting by the
Respondent Union in its business office and meeting hall in Bay City,
Michigan, in places where notices to members are customarily posted.
Copies of said notice, to be furnished by the Regional Director, shall,
after being signed as provided above, be forthwith returned to the
.Regional Director for such posting.
(g), Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
B. The Respondent Union, Local No. 116, United Brotherhood
of Carpenters and Joiners of America, its officers, agents, representa-
tives, successors , and assigns , shall :
1. Cease and desist from :
(a) Maintaining in effect the union-security provision of the
,collective-bargaining agreement dated May 4, 1960, which requires
employees to become members of the Union no later than the seventh
day following the beginning of their employment or executing, en-
forcing, or maintaining any extension, renewal, modification, or sup-
plement of the aforesaid agreement, or any superseding agreement
with J. W. Bateson Company, Inc., which contains a union-security
provision not in conformity with the requirements of Section 8 (a)
(3) and 8(f) (2) of the Act.
(b) Causing or attempting to cause J. W. Bateson Company, Inc.,
to discriminate against Frank Sutton, or any other employee, in viola-
tion of Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
J. W. BATESON COMPANY, INC. 1659
(c) Restraining or coercing employees in any like or related man-
ner in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own free choice, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Jointly and severally with the Respondent J. W. Bateson Com-
pany, Inc., make whole Frank Sutton for any loss of earnings he may
have suffered by reason of the discrimination against him, as set forth
in the section of this Decision and Order entitled, "The Remedy."
(b) Notify Frank Sutton and the Company, in writing, that it
withdraws its objection to Sutton's employment and requests the Com-
pany to offer him reinstatement at the Capehart housing project,
Wurtsmith Air Force Base, Oscoda, Michigan, if it is still in existence.
(c) Post at its business office and meeting hall in Bay City, Michi-
gan, copies of the notice attached hereto marked "Appendix B."'
Copies of said notice, to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by a representative of
the Respondent Union, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Union to insure that these notices are not altered, defaced, or covered
by any other material.
(d) Post at the same places and under the same conditions as set
forth in paragraph (c), above, as soon as forwarded by the Regional
Director, copies of the notice attached hereto marked "Appendix A."
(e) Mail to the Regional Director for the Seventh Region, signed
copies of the notice attached hereto marked "Appendix B" to be posted
by Respondent J. W. Bateson Company, Inc., at its places of business
in the Oscoda, Michigan, area, as provided above. Copies of this
notice, to be furnished by the Regional Director for the Seventh -Re-
gion, shall be returned to the Regional Director forthwith for appro-
priate disposition, after being signed by the Respondent Union's
representative.
(f) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days of the date of this Order, what steps it has taken
to comply herewith.
8 See footnote 5, supra.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges that the Respondent main-
tained an agreement or practice providing for a discriminatory hiring
arrangement.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT maintain in effect the union-security provision of
our collective-bargaining agreement of May 4, 1960, with Local
No. 116, United Brotherhood of Carpenters and Joiners of
America, which requires our employees to become members of
Local No. 116 no later than the seventh day following the be-
ginning of their employment, nor will we execute, enforce, or
maintain in effect any union-security provision in a collective-
bargaining agreement, or any extension, renewal, modification, or
supplement of a collective-bargaining agreement, unless such pro-
vision has been formulated in conformity with the requirements
of Section 8(a) (3) and 8(f) (2) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT encourage membership in the above-named
labor organization by discriminatorily discharging any of our
employees.
WE WILL offer to Frank Sutton immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
WE WILL jointly and severally, with the above-named labor or-
ganization, make whole Frank Sutton for any loss of pay suffered
by reason of the discrimination against him.
All our employees are free to become or remain; or to refrain from
becoming or remaining, members of the above-named labor organiza-
tion, except to the extent that this right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
J. W. BATESON COMPANY, INC.,
Employer.
Dated---------------- By------------------=------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other- material.
J. W. BATESON COMPANY, INC. 1661
APPENDIX B
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF
J. W. BATESON COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain in effect the union-security provision of
our collective-bargaining agreement of May 4, 1960, with J. W.
Bateson Company, Inc., which requires employees of said Com-
pany to become members of this Union no later than the seventh
day following the beginning of their employment, nor will we
execute, enforce, or maintain in effect any union-security exten-
sion, renewal, modification, or supplement of a collective-
bargaining agreement, unless such provision is in conformity with
the requirements of Section 8 (a), (3) and 8 (f) (2) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause J. W. Bateson Com-
pany, Inc., to discharge or to in any way discriminate against
Frank Sutton, or any, other employee, in violation of Section
8(a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL notify the Company and Frank Sutton, in writing,
that we withdraw our objections to his employment and request
his reinstatement to his former or to an equivalent position.
WE WILL, jointly and severally with J. W. Bateson Company,
Inc., make whole Frank Sutton for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees in the exercise of the rights
guaranteed in Section 7 of the Act, except in the manner per-
mitted by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
LocAL No. 116, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the, date hereof,
and must not be altered, defaced, or covered by any other material.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), was heard in Tawas City, Michigan , on December
20 and 21, 1960, before the duly designated Trial Examiner . The consolidated
complaint herein alleges that J . W. Bateson Company, Inc., herein called the Com-
pany, and Local No. 116, United Brotherhood of Carpenters and Joiners of America,
herein called the Union , entered into and maintained an exclusive discriminatory
hiring arrangement and/or practice ; that pursuant to such arrangement or practice
the Respondent Company refused to hire and/or discharged Frank Sutton at the
request of the Union in violation of Section 8(a) (3) and 8 (b) (2) of the Act; that
the Company and the Union entered into and maintained a written agreement con-
taining an unlawful union-security clause in violation of Section 8(a)(3) and (1)
and 8 ( b)(2) and (1) (A) of the Act. All parties were afforded full opportunity to
examine and cross -examine witnesses , to introduce evidence , to present oral argu-
ments, and , thereafter , to file briefs. The parties waived oral argument . Briefs
and supplemental briefs were filed by the Company , the Union, and the General
Counsel.
Upon the entire record in the case , and upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
J. W. Bateson Company, Inc., a Texas corporation, having its principal office and
place of business in Dallas, Texas, has maintained an office and place of business
at Wurtsmith Air Force Base, Capehart housing project, Oscoda, Michigan, at all
times material herein, where it is and has been engaged in the construction of build-
ings and other installations for the United States Air Force.
During the 12-month period immediately preceding the hearing herein, which
period is representative of all times material herein, the Respondent Company has
purchased and received goods in excess of $50,000 directly from outside the State
of Texas, and has during the same period performed services of a value in excess of
$50,000 outside the said State of Texas.
I find upon the foregoing that the Company is engaged in commerce within the
meaning of the Act and that it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 116, United Brotherhood of Carpenters and Joiners of America, is a
labor organization within the meaning of the Act and admits to membership em-
ployees of the Company.
In. THE UNFAIR LABOR PRACTICES
A. Issues
1. Did the Respondents maintain a discriminatory hiring hall arrangement or
practice? I
1 The complaint alleges among other things a violative arrangement within the definition
thereof set forth in Mountain Pacific Chapter of the Associated General Contractors, Inc.,
et at ., 118 NLRB 883, alleging a failure to post in accordance with the Mountain Pacific
standards. However, the facts relating to a possible violation on a broad discrimination
theory were fully litigated. Because the Supreme Court's decision in Local 357, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Los Angeles-Seattle Motor Express) v. N.L.R B., 365 U.S. 667, overruled Mountain Pacific
Chapter, this report is grounded upon Board law as it existed prior to Mountain Pacific
Chapter To apprise the parties of this and to give them full opportunity to express their
views of the impact of the Supreme Court's decision, supplemental briefs were requested.
As a result, the General Counsel, in his supplemental brief, requested permission to with-
draw his requests (1) that the Trial Examiner find that the Respondents.had agreed upon
a hiring practice which was per se violative and (2) that the Respondents should, as part
of the remedy, reimburse the members of the Union pursuant to the Brown-Olds formula.
.(See United Association of Journeymen & App)entices, etc., Local 231 (J. S Brown-E F.
'Olds Plumbing it Heating Corporation), 115 NLRB 594.)
J. W. BATESON COMPANY, INC., 1663
2. Was Sutton refused employment or discharged at the request of the Union by
reason of the application or enforcement of the alleged unlawful discriminatory
hiring hall arrangement or practice?
3. Did the written agreement between the Company and the Union contain an
unlawful union-security agreement in that the union -security provisions of the agree-
ment failed to provide a full 7-day grace period before new employees were required
to become members of the Union?
B. The unlawful union-security provision
The Company and the Union first entered into a written agreement on December
9, 1959.2 Among other union-security provisions, this agreement contained a
clause providing that' employees were obligated to become members of the Union
no later than the 31st day after hire 'or after the effective date of the agreement
whichever was later. This provision is valid on its face and no contention to the
contrary is made. However, this agreement expired on April 30, 1960, and a new
agreement dated May 4, 1960, was adopted by the same parties which contained
a union-security clause as follows: 3
ART. III. (a). The Employer agrees that as a condition of continued employ-
ment all present and future employees covered by this agreement shall become
and remain members in good standing in the appropriate local union, affiliated
with the Carpenters District Counsel of Saginaw Valley, no later than either the
7th day following the beginning of their employment or the 7th day following
the effective date of this clause, whichever is later.
The General Counsel contends that this clause is violative in that it does not pro-
vide for the full 7-day grace period required by Section 8(f)(2) of the Act. That
section,' one of the amendments to the Act adopted by the Congress in 1959, known
as the Labor-Management Reporting and Disclosure Act of 1959, provides that in
the building and construction industry an employer and union may enter into an
agreement requiring union membership after the seventh day following the beginning
of such employment or the effective date of the agreement whichever is later .4
By comparison Section 8(a)(3) of the Act provides that a contract may require
union membership on or after the 30th day following the beginning of such employ-
ment or the effective date of such agreement whichever is later. It would seem
that the intent of Congress in adopting the language of both Section 8(f)(2) and
Section 8(a) (3) was the same.5
With regard to Section 8(a)(3), the Board has held that 'a contract which does
not clearly on its face extend a full 30 days to new employees to join a union is
violative of Section 8(a)(3) and does not conform to the proviso of that section.
Because of the similarity of wording between ithe proviso of Section 8(a)(3) and
of Section 8(f)(2) it would seem that the same rule of construction should apply.
I find that the 7-day union-security clause in the contract here in question does not
clearly on its face provide a full 7-day grace period for employees to become mem-
2'T'his agreement and its successor agreement of May 4, 1960, recited as the contracting
union the Carpenters District Counsel of Saginaw Valley and its affiliated local unions,
therein called the Union. It was signed by Earl W. Geister, business agent of the Respond-
ent Union
a Neither of these clauses are alleged to have been the basis for the alleged individual
discrimination against Sutton, the Charging Party herein.
° The full text of the applicable portion of Section 8 reads as follows
(f) It shall not be} an unfair labor practice under subsections (a) and (b) of this
section for an employer•ehgaged primarily in the building and construction industry to
make an agreement covering employees engaged (or who, upon their employment, will
-be engaged) in the building and construction industry with a labor organization of
which building and construction employees are members . . because (2) such
agreement requires as a condition of employment, membership in such labor organi-
zation after the seventh day following the beginning of such employment or the effec-
tive date of the agreement, whichever is later . . .
The legislative history of the Labor-Management Reporting and Disclosure Act of 1959,
of which the section in question is a part, in several instances refers to this section as
substituting'a 7-day union-security provision for the 30-day union-seem ity provision in the
building and construction industry. Thus, it would seem that the two sections are to be
given the same construction with regard to the tolling of time See S Rept 187 on S. 1555
at p. 28 ; H. Rept. 741 on H R 8342 at p. 20
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bens of the Union but, instead, is subject readily to the interpretation which would
make membership mandatory on the seventh day of employment.
Accordingly, I further find that the clause in question is unlawful and that the
entering and maintenance of a contract containing such clause is violative of Section
8(a)(3) and (1) of the Act on the part of ,the Company and of Section 8(.b) (2) and
(1) (a) on the part of the Union.6
C. The alleged unlawful hiring hall arrangement or practice
Sometime in the latter part of 1959, the Company took over from another firm
the general contract for the erecting of personnel housing known as the Capehart
housing project, Wurtsmith Air Force Base, Oscoda, Michigan. Oscoda lies within
the Union's geographical jurisdictional limits and when it became necessary to staff
the project with carpenters the Company, through its project superintendent, John
Askins, and Earl W. Geister, the Union's business agent, made arrangements to
insure -a supply of carpenters for the project. With regard to this supplying fo
carpenters, a written agreement was entered into as heretofore related. In addition
to the union-security clause discussed above, under the general topic "union se-
curity," the contract provides 7 that: (a) the Union shall have equal opportunity
with other sources to provide carpenters to the Company; (b) the Company may
request the Union to refer specific individuals; (c) the Company if it so desires may
rehire, first, former employees regardless of affiliation but shall notify the Union in
such cases; (d) all other job applicants shall be required to pass a comprehensive
examination as established by the Carpenters Joint Apprenticeship Committee; and
(e) the Company retains the right to accept or reject any applicant for employment.
The foregoing constitutes the total written understanding as to hiring. After the
execution of the first agreement on December 9, 1959, the Company hired and re-
staffed first from among employees of its predecessor on the job and it was not until
the weather became favorable for construction in February and March 1960 that
the Company began calling upon the Union to supply carpenters.
James A. Sanders, the Company's field superintendent in charge of carpenters,
credibly testified that his understanding of the written agreement was that if the
Company needed men it was to notify the Union, and that if the Union did not
supply the men or could not supply the men, then the Company could hire wherever
it pleased. Sanders further testified that, customarily, when he needed carpenters
he would notify Leo Van Horn, the union steward at the project, a day or so before
the men were needed and usually Van Horn would have the men for him in ac-
cordance with his request. He also testified that when the men came to him with
referral slips he never checked to see whether they were union members, permitmen,
or neither. Although he insisted that he could hire who he liked he was 'able to
name only one individual, the son of the family with whom he was rooming, whom
he did not hire through the union hiring hall or through Van Horn. He also testified
that it was not a company representative but rather, Van Horn, who customarily
went to the project gate and issued referral slips to individuals applying for jobs as
carpenters. These individuals were not dispatched by Geister from the union hall;
but came independently to the gate seeking work. Thus, whether the men were
dispatched by Geister or were given referral slips at the gate by Van Horn, it was
a union representative who referred job applicants before the applicants normally
were able to see a company representative.
With regard to the Company's right of rejection, provided in the written agree-
ment, Sanders admitted that he had to hire the men approved in advance by Van
Horn, whether or not they were qualified by experience or even if they did not
possess working tools. He further admitted that although no men were laid off
while he was on the job (some were discharged for incompetence), if a layoff had
taken place he would have been obliged to lay off permitmen first and bookmen later.
On the other hand, Sanders steadfastly maintained that when the men came to
him at the Company's field office he never inquired as to their union status.
Leo Van Horn, the union steward, testified that when he was hired as a carpenter
on the job, John Askins, the project manager, hired him and he was not required
to show a referral slip or to prove union affiliation. As a matter of fact, he ob-
tained the job on his own, and was not referred to Askins by the Union. After he
See Chun King Sale8, Inc., 126 NLRB 851,853; Argo Steel Con8truct l,on Company, 122
NLRB 1077, 1082.
The first contract and its successor of Ntay- 4, 1960, both contained identical language as
to this poition of the agreement
J. W. BATESON COMPANY, INC. 1665,
was hired, he made contact with Geister, the union business agent , and it was
Geister who appointed him the job steward.
According to Van Horn, as job steward he applied union regulations to hiring
on the job to the extent that when the Company needed men they were to call
Geister, the business agent, or Van Horn, and if the Union could not furnish men,
then the Company would hire anyone it desired. However, he did admit, confirm-
ing Sanders' testimony, that he was the one who did the screening at the gate of the
plant when the Company hired men who were not referred by Geister. He main-
tained, however, that when he was at the gate he gave out referral-slips indiscrim-
inately and he never questioned an applicant regarding the latter's union status.
Primarily, all he was interested in was whether a man could operate as a carpenter.
Van Horn admitted that he could name only one individual who had been selected
by the Company without being referred either by Geister or by Van Horn. This
was the individual mentioned in Sanders' testimony whom Sanders stated he hired
directly because the individual was the son of the family with whom he resided.
Van Horn denied, when presented with his pretrial affidavit, that the said affidavit
was accurate in its statement that a permit was necessary before a man could work
at the project. He reiterated that if a man wanted to work at the project he could
work on a permit, pay his dues, or his initiation fees if he wanted to, or he did not
even have to have a permit or bea member of the Union. Many of the men worked
on the job without a permit and never paid a dime. In fact, he testified that one
individual, William Harrington, worked 9 months without a permit and the Com-
pany was never asked to discharge that man. Van Horn further stated that when he
checked on the job to see if men were members he did so pursuant to contract and,
furthermore, when he checked union books he did so only as against union members
whose duty it was to keep up their membership.8
Van Horn further admitted that when he went to the gate to pass out referral
slips he generally selected first those who had referral slips from Geister. Any of
his testimony which contradicted this statement I do not credit. However, I do
credit Van Horn's testimony that there were several categories of men on the job,
some of whom were members of the Union, others who were members of other
carpenter locals and on permit, and others who were not members of any carpenter
local. I credit this because it is in conformity with the testimony of Sanders whom
I have already credited. I also credit Van Horn's denial that the apprenticeship test
mentioned in the contract was never given to anyone at the job nor was anyone
denied employment for having failed to take the said test 9
Paul Nightingale, the Company's field superintendent, who was the immediate
assistant to Sanders and who preceded Sanders on the job, testified that when he first
came ,to the job, he hired the individuals who had been working for the Respondents'
predecessor regardless of their union affiliation. Thereafter, when he needed men,
he would contact Van Horn, who in turn would supply the men needed. However,
he also hired men directly without contacting Van Horn. Nightingale further testi-
fied ,that he did not at any time during the period when he was hiring request of any
applicant whether he was a union member . Nor did he ever request an applicant to
show his union book or permit card. I credit Nightingale.
On the other hand, Frank Sutton, the Charging Party herein, testified that in the
first part of April 1960, he went to the field office of the Company at the airbase and
asked a number of people if he could have work as a carpenter. The replies were
to the effect they were not hiring . Ultimately during the week of April 4,, he re-
turned to the base after several unsuccessful visits and finally spoke to Leo Van
Horn. He asked Van Horn whom he had to see in order to work. He told Van
Horn of his qualifications to perform the work of trimming carpentry and Van
Horn told him to call the business agent, Earl Geister. Van Horn wrote Geister's
" Contrary to the testimony of Sanders , Van Horn denied that union members were pre:
ferred over others in the even of layoff, but again no specific cases were discussed . In this
respect, I credit Sanders over Van Horn. In doing so , I note that Van Horn's testimony
differed in several respects from his affidavit and in other respects it was self -contradictory.
Accordingly , I find that Sanders was a more credible witness than Van Horn.
9I do not regard as an admission against the Union's interest the statement in Van
Horn's pretrial affidavit to the effect that permits were necessary to obtain a job, because
Van Horn was not sufficiently high in the union hierarchy. However, I find this conflict
between his pretrial statement and his testimony on the stand sufficient reason to discredit
that part of Van Horn's testimony which is in conflict with the testimony of the other
witnesses herein.
630849-62-vol 134 106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone number on a block of wood and then signed his own name on the block.10
Pursuant to Van Horn's instructions, Sutton called Geister at the latter's office the
following morning. Sutton explained who he was and that he would like to put
his name on the list to do trimming carpenter's work at the Bateson job at the Air
Force base. Geister answered that he would put Sutton's name down on the list.
This was the total conversation. Sutton also spoke that week to a Milton Clouse
who was a carpenter foreman on the job. Clouse told him that he was going to
take on carpenters and told Sutton to see the job steward and leave his name with
the steward because the steward often called Geister up. Clouse, according to
Sutton, also asked Sutton if he had a union book and when Sutton showed him his
book Clouse told him to go see the superintendent who did all the hiring. As a re-
sult of Clouse's instruction, Sutton received an interview with Paul Nightingale who
ultimately, on April 8, 1460, hired him.11
Upon Sutton's being hired, he was given an identification badge by Nightingale.
Although Nightingale could not, upon examination, remember hiring Sutton, I
credit Sutton's testimony that he was hired.la
Sutton further testified that when Nightingale hired him he told him to report to
work on the following Monday morning. When Sutton did so he was told by
Nightingale to report to Clouse. Sutton testified that when he reported to Clouse,
the latter told him that before he started to work he had better report to Job Steward
Leo Van Horn. Sutton went to see Van Horn whom he found in the company of
Nightingale. When Van Horn saw Sutton he turned to Nightingale- and stated if
Sutton worked on the job Van Horn would "pull" or strike the job. At this point
Sutton tried to show Van Horn his union book, proving that Sutton was a member
of a sister local of the Carpenters International, but Van Horn stated that he was
not interested in the book. While this ensued, Nightingale remained silent and
after Van Horn repeated that he would call a strike on the job if Sutton went to
work, Sutton abruptly left the job and did not return.
D. Findings and conclusions as to the alleged discriminatory
hiring practice
It is clear that the written agreement between the Union and the Company did not
itself provide either for an exclusive or a discriminatory hiring hall procedure. It
clearly designated the Union as only one of the sources from which the Respondent
could hire employees and the equal opportunities clause indicated that the Company
was free to hire elsewhere. Moreover, the Company, in the agreement, reserved
to itself the right to reject individuals sent to it by the Union. In addition, the
Company was free to hire old employees without regard to their union affiliation
provided only that it notify the Union when it did so. This was a reasonable require-
ment in .view of the fact that the agreement contained a union-security clause and
the Union would have a right .to know what employees were on the job so that it
could approach them with regard to becoming union members.13
Accordingly, if there was any unlawful arrangement, it existed outside of the
agreement. The question, then, is whether the hiring, as practiced, was discriminatory.
I am struck by the fact that except for the circumstances which caused Sutton to
leave the job, the entire record is consistent with a finding that the hiring was done
on a nondiscriminatory basis. Although the Respondent Company virtually turned
lU Van Horn admitted at the hearing that it was his signature on the block
11 Clouse testified that although he remembered seeing Sutton on the job and wanted to
hire him, he told Sutton that he never did any of the hiring himself He did not remember
any incident in which he asked Sutton for the latter to show him his union book. In this
respect , I credit Sutton because Clouse's denial was not a direct denial but more a failure
to remember the details of the incident . Sutton ' s testimony on the other hand , was verified
by the block of Wood and by other incidents hereinafter related
'a This is so not only because his testimony is supported by the badge and the block of
wood, both of which were introduced in evidence , but also because there is no explanation
anywhere on the record by the Respondent as to how Sutton would otherwise have received
either the block of wood or the badge. Moreover , none of this testimony was denied directly
by Nightingale who merely could not remember the incident.
11 The record establishes that no applicant for a job was ever given a test as provided in
the contract . Thus, it appears that this clause was honored in its breach . In any event,
there is no showing that the contractual testing provision was ever applied discrimina-
torily nor is it discriminatory on its face
J. W. BATESON COMPANY, INC. 1667
over its hiring processes to the Union by giving to Van Horn the authority to screen
applicants at the project gate, nonunion people were working on the job. Some of
these, it is true, could well have been the individuals whom the Company had rehired
as old employees of the Company's predecessor. However, it is equally possible that
the nonunion employees were those who were referred to the Company by either
Geister or Van Horn. This would indicate that the Union did not discriminate in the
selection of prospective employees whom it sent to the Company for hare. I believe
that this conclusion is supported by the fact that Sutton himself admitted that he was
hired by Nightingale without a referral slip from the Union or any questioning as
to his union status. Moreover, Sutton was accepted by Geister to be placed on the
Union's referral list without any question by Geister as to what Sutton's union affili-
ation was.
Nor do I believe that the circumstances under which Sutton left the job were
sufficient to establish, in and of themselves, that a discriminatory hiring arrange-
ment existed. Even assuming that the circumstances establish discrimination against
Sutton,14 the incident involved but one employee out of hundreds and was accordingly,
too isolated to establish a pattern or practice.
Accordingly, I find the record fails to establish by a preponderance of the credible
evidence that a discriminatory hiring agreement or practice existed as between the
Respondents 15 and shall, therefore, recommend dismissal of so much of the com-
plaint as alleges the same.
E. Findings and conclusions as to the alleged discrimination against Frank Sutton
As hereinabove set forth, Sutton, after much effort, succeeded in obtaining a job
as a carpenter with the Company without having been referred by the Union. This
was on Friday afternoon, April 8, 1960. He was given an identification badge by
Nightingale, the carpenter superintendent, and was instructed to report to work the
following workday, Monday, April 11. When he reported on Monday, Nightingale
sent him to work under Clouse, a carpenter foreman, who informed Sutton that the
latter should report to Van Horn, the job steward, that he was starting on the job.
Sutton found Van Horn in the company of Nightingale.
When Sutton reported to Van Horn, the latter stated that he would "pull" the job
if Sutton worked there. Van Horn refused to look at Sutton's book which verified
Sutton's membership in a sister Carpenter local. When Nightingale said nothing,
Sutton walked off the job and did not return.
Aside from any question of discrimination against Sutton, the immediate issue is
whether Sutton was discharged as claimed. The General Counsel contends that
Sutton had no alternative but to leave the job in view of Van Horn's threat and
Nightingale's silence. The Respondents take no stand on this issue, both denying
that the incident occurred or that Sutton was ever hired.
Because I have credited Sutton's testimony, I find that the incident did occur as
testified by Sutton, but, contrary to the contention of the General Counsel, I cannot
conclude that Sutton was discharged, either directly or constructively.
The incident leading to Sutton's walking off the job was of very short duration.
The conversation was between Sutton and Van Horn who gave Nightingale no op-
portunity to speak. Sutton, without waiting for Nightingale to speak, or without
even asking Nightingale what the Company's wishes in the matter were, simply
walked off the job. Whether in his own mind Sutton felt that he could not work
under the circumstances is not material. What is material is whether the Company,
through any of its supervisors, had set up such a situation or permitted such a con-
dition to exist which made futile any further attempts by Sutton at job retention.
Such was not the case here. I do not believe that Sutton could reasonably have
believed that he was discharged until Nightingale had either expressed himself or had
failed to express himself after being asked by Sutton what the latter should do.
Sutton made no attempt to exhaust his remedy. Accordingly, I find- that Sutton`
14 See below for discussion of the alleged unlawful discharge.
is In so concluding , I have not discussed various provisions of the Union's constitution,
'bylaws, and working rules which, if enforced, could possibly constitute discrimination I
have not referred thereto because (a) there is no evidence that they were applied here and
(b) the contract between the Respondents did not in any way adopt these provisions
Moreover , in the light of the Supreme Court 's decision in the N.L R B. v. News Syndicate
Company, Inc ., et al . 365 U S. 695, it may not he assumed from the mere existence of
such rules that the parties will violate the Act
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not discharged and that, therefore, the Company did not violate Section 8(a) (3)
of the Act.
With regard to Van Horn's activity in threatening to close down the job if Sutton
worked, it should be noted that Van Horn was the sole representative of the Union
on the job at the airbase, and that he was assigned the duty of policing that job on
behalf of the Union. Hence his actions were within the scope of his authority as job
steward. Although the testimony leaves the motive for his action somewhat ob-
scure, clearly his intention was to cause the Company to discharge Sutton. In deny-
ing that Van Horn had made these threats, the Union failed to offer any explanation
which would excuse Van Horn's action or give an innocent connotation thereto.
Under the circumstances, I have no alternative but to find that Van Horn pursued his
activity with the intent to discriminate against Sutton, because Sutton was not a
member of the Union.16 Accordingly I find that the Respondent attempted to cause
Sutton's discharge in violation of Section 8(b) (2) and (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the business operations of the Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated the Act it will be recommended
that they cease and desist therefrom and take certain affirmative action designed to,
effectuate the policies of the Act.
The Respondents having entered into an agreement containing a union-security
clause which does not on its face provide the full 7 days prescribed in Section 8(f) (2)
of the Act for employees to become members of the Union, I will recommend that
the parties cease and desist from maintaining in effect such a clause.
Because it has been found that the Union attempted to have Sutton discharged, I
will recommend that the Union, among other things, notify the Company that it has
no objections to Sutton's employment by the Company with the same rights and
privileges enjoyed by other employees.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. J. W. Bateson Company, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 116, United Brotherhood of Carpenters and Joiners of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By entering into and maintaining a contract containing an unlawful union-
security clause, J. W. Bateson Company, Inc., has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act, and Local No. 116,
United Brotherhood of Carpenters and Joiners of America, has engaged in unfair
labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act.
4. By attempting to cause J. W. Bateson Company, Inc., to discharge Frank Sutton,
Local 116, United Brotherhood of Carpenters and Joiners of America, has engaged
in unfair labor practices within the meaning of Section 8(b)(2) and (1) (A) of
the Act.
[Recommendations omitted from publication.]
'" At the hearing, the General Counsel was permitted, over the objection of the Respondent
Union, to introduce testimony as to attempts by Sutton, almost 2 years earlier, to transfer
his membership from the sister local to Respondent Union. In sum, this testimony showed
that although the Union did not make it easy for Sutton to effectuate the transfer, neither,
did it refuse transfer. If anything, the testimony showed further that Sutton abandoned
the idea of transferring. This testimony also hinted at bad blood between the Union and
Sutton but no definite inference can be drawn therefrom . Accordingly, I do not rely on,
this backgiouiiil inateiial to ally extent